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FOURTH
SECTION
CASE OF KALLIS AND ANDROULLA PANAYI v. TURKEY
(Application
no. 45388/99)
JUDGMENT
STRASBOURG
27 October 2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Kallis and Androulla Panayi
v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Işıl
Karakaş,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45388/99) against the Republic
of Turkey lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Cypriot nationals, Mr Kallis Panayi and
Mrs Androulla Panayi (“the applicants”), on 29
November 1996.
- The
applicants were represented by Mr A. Demetriades and Mrs V. Loizides,
two lawyers practising in Nicosia. The Turkish Government (“the
Government”) were represented by their Agent,
Mr Z.M. Necatigil.
- The
applicants alleged that the killing of their son by members of the
Turkish-Cypriot armed forces amounted to a violation of Articles 2, 8
and 14 of the Convention
- On
13 May 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
applicants and the Government each filed written observations. In
addition, third-party comments were received from the Government of
Cyprus, who had exercised their right to intervene (Article 36 §
1 of the Convention and Rule 44 § 1 (b)).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1947 and 1950 respectively and live in
Nicosia. They are a married couple.
- The
parties disagree as to the facts of the case.
A. The applicants' version of the facts
- On
3 June 1996 Stelios Kalli Panayi, the applicants' son, who at that
time was nineteen years old, was serving in the Cyprus National Guard
as a private soldier. Early that morning he entered the United
Nations (UN) buffer zone in Nicosia. He wanted to exchange his hat
with one belonging to a soldier of the Turkish-Cypriot armed forces.
He was off duty and unarmed. The Turkish armed forces shot him.
- When
members of the UN force in Cyprus (UNFICYP) attempted to reach
Stelios Kalli Panayi in order to provide medical treatment and try to
save his life, the Turkish armed forces opened fire, thus preventing
medical aid from being administered.
- According
to the applicants, who cited articles published in the Cyprus Mail
newspaper of 5, 6 and 7 June 1996 in this connection, had access not
been denied to the persons seeking to provide medical assistance
there would have been a good chance of saving Stelios Kalli Panayi's
life.
B. The UN Secretary-General's report
- The
applicants produced a report from the UN Secretary-General dated
7 June 1996. In so far as relevant, this document reads as
follows:
“The third incident took place on 3 June 1996. An
unarmed National Guard soldier was shot and killed inside the UN
buffer zone in central Nicosia. The investigation has revealed that
the lethal round was fired by a Turkish-Cypriot soldier whom UNFICYP
had observed entering the buffer zone with his rifle strung across
his back. Shortly thereafter a single shot was heard and the
Turkish-Cypriot soldier was seen running back in a crouched position
to the Turkish ceasefire line holding his rifle in his right hand.
UNFICYP soldiers were prevented from reaching the National Guard
soldier by Turkish-Cypriot soldiers who fired shots in the direction
of the UNFICYP soldiers each time the latter tried to move forward.
UNFICYP strongly protested to the Commander of the Turkish forces in
Cyprus the unauthorised entry of an armed Turkish Cypriot soldier
into the buffer zone, the shooting incident and the hostile action,
including live fire against UNFICYP. UNFICYP is pursuing with the
Turkish forces in Cyprus and with the Turkish-Cypriot authorities the
question of appropriate action and has requested that UNFICYP police
investigating the killing be able to interview the Turkish-Cypriot
soldier involved in the incident. The military authorities on both
sides have been urged once again to respect the UN buffer zone and
ensure its integrity.”
- The
applicants' lawyer requested a copy of the relevant reports from
UNFICYP. However, his request was refused as the documents in
question were considered to be internal UN documents.
C. The Government's
version of the facts
- According
to the Government, the chain of events which led to the death of
Stelios Kalli Panayi could be summarised as follows.
- The
incident took place in a part of Nicosia where the Pedios River
marked the boundary of the “Turkish Republic of Northern
Cyprus” (the “TRNC”). In the Turkish part of the
buffer zone were the Yıldırım sentry post and the
positions of the Turkish-Cypriot security forces. The positions of
the Greek-Cypriot army (the National Guard) were on the Greek-Cypriot
administration's defence line, 2-3 metres west of the UNFICYP patrol
road. The UN-60 observation post was about 250 metres south of the
sentry positions of each of the two sides. The Yıldırım
sentry post was located on high ground which ran down steeply to the
river bed; the latter was marshland, covered with high reeds; on the
Greek-Cypriot side there were huge eucalyptus trees.
- The
UN patrol road was on the other side of the river and entry into
“TRNC” territory by UNFICYP soldiers was possible only by
crossing a wooden bridge. The area starting five metres west of the
Yıldırım sentry post in the direction of the
Greek-Cypriot sentry post could not be observed from the UN
observation post building, which had a view over the Turkish and
Greek-Cypriot positions but not the area in between.
- On
the day of the incident it was observed from the Yıldırım
sentry post that a fully armed soldier of the National Guard, who was
wearing army uniform, had come out of his duty station and had
entered the buffer zone. He made gestures by hand and called to the
Turkish-Cypriot soldiers on sentry duty to go over to him. One of the
Turkish-Cypriot soldiers on duty warned him in a loud voice in
Turkish, English and Greek not to approach; another Turkish-Cypriot
soldier asked the Turkish-Cypriot patrol to come to the area.
Ignoring the verbal warning, Stelios Kalli Panayi proceeded into the
buffer zone and descended towards the river bed; a Turkish-Cypriot
soldier came out of his sentry post and walked about 5 metres in
a westerly direction in order to be able to observe the National
Guard soldier advancing. At this moment another Turkish-Cypriot
soldier took up position on the southern side of the communication
trench; a soldier was also located above the trench at a point where
he could have a better view of the vicinity of the river. He shouted
once more to the Greek-Cypriot soldier, using the Greek word “Ochi”
(“No”), and instructed him to leave the area.
- In
spite of this Stelios Kalli Panayi entered into “TRNC”
territory by crossing the wooden bridge which only UNFICYP soldiers
were allowed to use. Two warning shots were fired by a
Turkish-Cypriot soldier (one into the air and one towards the
ground); as Stelios Kalli Panayi proceeded further into “TRNC”
territory, causing a serious threat to the lives of the
Turkish-Cypriot soldiers, one more shot was fired to stop him.
- On
hearing the gunshots, a UNFICYP soldier came out of his observation
post, located 250 metres south of the scene of the incident and
started to look around; as he did not have a clear overall view, he
proceeded towards the place where the gunshots had been heard and was
about to cross the bridge. However, he was warned by means of two
shots fired into the air by the Turkish soldiers not to advance any
further. In fact, the situation was still critical as it was not
known whether Stelios Kalli Panayi had adopted a more advantageous
crawling position.
- At
7.01 a.m. an ambulance arrived in the area by the Peace Force patrol
road. Stelios Kalli Panayi was placed in the ambulance, which left
for the hospital. Later, the Turkish-Cypriot authorities were
informed that he had died.
D. The documents produced by the Government
- The
Government produced a number of documents, including:
(a) a
map and some photographs of the area where the incident had taken
place;
(b) a
list of the “incidents that took place at the Greek-Cypriot
Guard Post”, giving details of 69 episodes, including firing
into the air, provocation by throwing stones and use of abusive
language;
(c) several
articles published by Turkish and/or Turkish-Cypriot newspapers
concerning the circumstances of the killing of Stelios Kalli Panayi,
the differences between the versions of the facts given by the two
sides and political reactions to the incident.
- The
Government further produced the following documentary evidence:
(a) A
note dated 6 June 1996 from the “TRNC” Ministry of
Foreign Affairs and Defence addressed to the Office of the Prime
Minister (with a copy to the Director of Intelligence,
Counter-Intelligence and Security), which reads as follows:
“Upon being informed that a Greek Cypriot
pathologist accompanied by UNFICYP will conduct an investigation at
the scene of the incident whereby on 3rd June 1996 a GCNG
soldier was shot, the UNFICYP has been contacted so that a
pathologist from our side could also conduct a similar investigation
at the scene of the incident on the basis of the principle of
equality as well as reciprocity.
In accordance with the agreement reached with UNFICYP,
the same day Dr. Engin Arkan from Dr. Burhan Nalbantoğlu State
Hospital has conducted an investigation at the scene of the incident
and the report that he prepared is enclosed herewith.”
(b)
The following note dated 6 June 1996 signed by Dr Engin Arkan
and addressed to Dr Burhan Nalbantoğlu of Lefkoşa (Nicosia)
General Hospital (with a copy to the Director of Intelligence,
Counter-Intelligence and Security):
“Regarding the shooting of a Greek-Cypriot soldier
today in the buffer zone, accompanied by UNFICYP I went to the scene
of the incident. In order to reach the scene of the incident, we
crossed the bridge known as the Normandy bridge in the buffer zone by
vehicle, went to the vicinity where the GCNG and UNFICYP positions
are located and stepped out of the vehicle. From there we proceeded
to the north by crossing a wooden bridge and from right after there
we reached the scene where the incident took place, which is
approximately 50-75 meters from the Turkish positions in the North.
At the said place there were [a] trail of blood with 15cm diameter
and a GCNG cap. According to the explanation given to me the bullet
entered from the side of the right rib cage and exited from the left
and it was also explained that the bullet also smashed the right arm
from below the shoulder.
Also according to the explanation given to me, the
corpse [was] found lying with his head towards North-West and foot
South-East direction.
After having this information, accompanied by UNFICYP,
[I] returned to Ledra Palace and entered TRNC by walk.”
(c) A
statement by the “TRNC” Ministry of Foreign Affairs and
Defence, which reads as follows:
“This morning at 6.30 hours in Köşklüçiftlik
area of Lefkoşa a fully equipped GCNG soldier was observed
approaching the Turkish position in the area, upon which he was
warned to stop by our guard first in Turkish, then in Greek and
English. GCNG soldier continued to proceed towards our guard and our
guard fired two warning shots, one in the air and one to the ground.
Despite numerous verbal warnings and warnings by fire, the GCNG
soldier continued to proceed and violated the border, a shot was
fired and he was observed to fall down. At 7.00 hours with the
arrival of UNFICYP ambulance to the scene the GCNG soldier was
evacuated.
We protest and condemn this irresponsible act which
resulted in the violation of the borders of TRNC and remind once more
the necessity for application of required measures by the parties
concerned to prevent recurrence of such incidents.”
(d) An
“information document on death incident”, a copy of which
was addressed to the Director of Intelligence, Counter-Intelligence
and Security and which contained the following information:
“1. TYPE OF INCIDENT: Firing on the Greek-Cypriot
National Guard (GCNG) soldier who violated the Turkish Contact Line.
2. PLACE OF INCIDENT: Northeast of YILDIRIM Guard Post
(317.5 – 931.9).
3. PLACE OF UNIT WHERE INCIDENT OCCURRED: 1st
Infantry Regiment 3rd Infantry Battalion 8th
Infantry Company.
4. DATE/TIME OF INCIDENT: 030630 C June 1996.
5. DETAILS OF INCIDENT: On the 3rd of June,
1996 at 6:30, the guards situated at the YILDIRIM Guard Post, in the
3rd Infantry Battalion, saw a fully equipped GCNG soldier
approaching the wooden bridge on KANLI DERE, which only UNFICYP
Patrol is permitted to use. Then, the guards at the post called the
Patrol guards, who were 250 meters to the south of the Guard Post and
at the same time they verbally warned the GCNG soldier. Since the
GCNG soldier suddenly disappeared, one of the guards from the Guard
Post moved 10 meters forward from the post and continued observing.
One of the Patrol Guards, who came to the area warned
the GCNG soldier verbally and by gun, and then fired and shot him,
while he was passing the wooden bridge and violating the TRNC border.
After the arrival of UNFICYP and Turkish officers to the area, the
GCNG soldier, who fell down, was taken by ambulance at 07:05 and it
was found out that he was dead.
The guards of ZYAD Guard Post, which is to the south of
the YILDIRIM Guard Post, Infrantry Private Ecevit AKSU and Infantry
Private Dogan GURCE observed the acts of UN-60 UNFICYP Guard, when
the incident occurred. They stated that the UNFICYP Guard was sitting
at the guard post when the incident occurred and he went out after he
heard the first gun shot. Then he started to observe the YILDIRIM
Guard Post. 3-5 seconds later, he heard 2 gun shots and he ran to the
area of the incident. After 5-6 minutes, 2-3 more bullets were fired.
The total number of shots heard was 6 or 7.
During the incident, the Patrol Guards Infantry Corporal
Zafer Ali SECKIN fired 5 times (one bullet into the air as a warning,
one bullet at the ground as a warning, one bullet to the target, and
2 bullets into the air as warning to stop the UNFICYP soldier). The
other Patrol Guard Infantry Corporal Ibrahim OGUT fired 2 times (as
warning to prevent the UNFICYP soldier from approaching), so 7
bullets were fired in total.
6. THE REASON FOR THE INCIDENT: The GCNG soldier's
persistent violation of the Buffer Zone and the Turkish Contact Line
despite the verbal warnings and warnings by fire.
7. PERSONNEL INVOLVED IN INCIDENT: The guards of the
YILDIRM Guard Post, Infantry Private Kemal GIYINER and Infantry
Private Huseyin CUMBUSCU were present during the incident; however,
the personnel who fired were Infantry Private Zafer Ali SECKIN, the
son of Ahmet, born in 1977 and registered in Magosa, and the other
patrol was Corporal Ibrahim OGUT.
8. CONDITION OF THE AFFECTED PERSON: It was observed
that the GCNG soldier, who fell down after being shot was taken by
ambulance and it was found out that he died.
9. THE IDENTIFICATION OF THE AFFECTED PERSON: GCNG
soldier was STELYOS PANAYI.
10. PROCEDURE FOLLOWED AFTER INCIDENT:
a. The GCNG soldier who was shot was taken from the
place of incident by ambulance and was brought to the Greek-Cypriot
Hospital in Southern Cyprus.
b. Rapid Reaction Squad was sent to the place of
incident.
c. All units were informed about the incident, steel
vests and steel helmets were distributed especially to all the guards
at the contact line, guard posts were reinforced and observation
activities were increased.”
(e) A
note from the “TRNC” Security Forces Command (1st
Infantry Regiment) dated 5 June 1996 concerning “the National
Guard soldier who was shot for violating the line of contact”,
which reads as follows:
“The incident that took place at 06.30 on 3 June
1996 at the YILDIRIM observation post – (coordinates
31750-93190); located within the area under the control of the 8th
Infantry Division of the 1st Infantry Regiment's 3rd
Infantry Battalion – during which a GCNG soldier was shot dead,
is described below.
1. On the day of the incident a fully equipped GCNG
soldier, whose weapon was not visible, came out of the GCNG squad
post – which is located 100 metres to the west of the YILDIRIM
observation post at the Southern Cyprus Greek Administration's line
of contact (coordinates 31750-93100) – and entered the buffer
zone. He then waved at two guards at the YILDIRIM observation post
and called them by saying “come here brother”. The guards
warned the GCNG soldier by shouting in Greek “OXİ”
and asked him, in Turkish, Greek and English, to stop. After the
Greek Cypriot soldier had entered the buffer zone, one of the guards
radioed patrols who at the time were 100 metres away to the north,
and asked them to come to the area. One of the guards then walked 10
metres to the west of the YILDIRIM observation post in order to be
able to observe the GCNG soldier who, by then, had gone into the
river bed and was out of sight. In the meantime, the patrols who came
from the communication trenches and who took up positions told the
guard to return to his post and shouted at the Greek Cypriot soldier
to leave the area.
When the Greek Cypriot crossed the wooden bridge, which
had been built on Kanlı River in the 1980s for the exclusive use
of the P.F. patrol personnel, and started advancing into the TRNC
territory, one of the patrols fired two warning shots, first into the
air and then at the ground. When the GCNG soldier ignored the warning
shots and continued to advance, he was fired upon. When the Greek
Cypriot soldier fell to the ground the patrols thought that he had
taken up a position and continued to observe him. The patrols also
reported the incident to the duty officer by radio.
2. A P.F. soldier at the UN 60 observation post –
which is located at approximately 250 metres to the south of the
place of the incident – heard the shots and came out of his
observation post and then started looking around. He saw our guard,
who had been warned by the patrols, running back to the YILDIRIM
observation post. [The P.F. soldier], unable to see the incident from
his position, advanced in the direction of the shooting and arrived
at the place of the incident. The patrols were concerned about a
possible attack by the Greek Cypriot soldier and they warned, first
orally and then by firing two warning shots into the air, the P.F.
soldier who, by then, had been attempting to cross the wooden bridge.
[The patrols] thus prevented the P.F. soldier from approaching the
place of the incident. A P.F. officer then arrived in the area.
3. At 06.55, when the ambulance arrived at the scene
using the P.F. patrol road, it was established that the Greek Cypriot
soldier had been injured. With the permission of a Delegation of
Guards and the Commanding Officer who had arrived at the scene in the
meantime, [the ambulance] was allowed to take the Greek Cypriot
soldier away. This was photographed by the Commanding Officer.
4. The subsequent investigation of the place of the
incident and of the relevant personnel [revealed that] the GCNG
soldier who crossed into the TRNC soil and who was deemed to be
carrying an assault weapon which could have posed a risk to our
guards, was warned and then shot in accordance with the existing
orders, instructions and rules of engagement.”
(f) Two
notes which read as follows:
“THE
POSSIBILITY OF THE P.F. GUARD AT THE UN 60 GUARD POST WITNESSING THE
INCIDENT
The UN 60 guard post is located at a 250 metre distance
from the place of the incident and 200 metres away from the YILDIRIM
S.F.C. guard post. 3 metre-long reeds covering the river bed and the
trees in the area prevent the place of the incident from being seen
from the UN guard post. However, the P.F. guard can see the actions
of the Turkish soldiers at the YILDIRIM guard post within a radius of
5 metres. At the time of the incident the Turkish guard at the
YILDIRIM guard post advanced 10 metres away from his post in
order to observe the GCNG soldier and asked the GCNG soldier to stop
and leave the area. When the GCNG soldier insisted in continuing, the
patrols who arrived at the scene warned the GCNG soldier and asked
the Turkish guard – a corporal – to return to his trench.
The guard then returned to his guard post. It might have been
possible for the P.F. guard to see the Turkish soldier returning to
his guard post. The Turkish soldier in ZİYAD guard post, which
is at a distance of 20 metres from the UN 60 guard post, saw the
P.F. guard sitting in the UN 60 guard post. Both the P.F. guard and
the Turkish guards left their posts after the first shot was fired.
The P.F. guard, who is said to have witnessed the incident, then
continued to observe the incident. Furthermore, it is not possible to
go down to the scene of the incident from the YILDIRIM guard post
because the river bed is too steep and is covered with 3 metre-long
reeds. Even entering the river bed from another direction would not
enable the P.F. guard to see.”
“THE
TAKING AWAY OF THE GCNG SOLDIER FROM THE AREA BY THE P.F. PERSONNEL
The incident took place at 06.30. As stated in the UN
report, the P.F. guard called for an ambulance only at 6.45 and
reported the incident. The P.F. personnel arrived in the area at
06.50 and were given permission to approach the scene of the incident
by the duty Turkish officer, commander of the duty [soldiers] and the
commander of the Division. The ambulance arrived at 7.01, the GCNG
soldier was put in the ambulance immediately and the [ambulance] left
the area at 7.05.”
E. The UN Force and Firearms Principles
- The
Government drew the attention of the Court to the UN Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials
(hereinafter “the UN Force and Firearms Principles”),
adopted on 7 September 1990 at the Eighth UN Congress on the
Prevention of Crime and the Treatment of Offenders. The relevant
provisions of this document read as follows:
Paragraph 5
“Whenever the lawful use of force and firearms is
unavoidable, law enforcement officials shall:
(a) Exercise restraint in such use and act in proportion
to the seriousness of the offence and the legitimate objective to be
achieved;
(b) Minimize damage and injury, and respect and preserve
human life;
(c) Ensure that assistance and medical aid are rendered
to any injured or affected persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the
injured or affected person are notified at the earliest possible
moment.”
Paragraph 7
“Governments shall ensure that arbitrary or
abusive use of force and firearms by law enforcement officials is
punished as a criminal offence under their law.”
Paragraph 9
“Law enforcement officials shall not use firearms
against persons except in self-defence or defence of others against
the imminent threat of death or serious injury, to prevent the
perpetration of a particularly serious crime involving grave threat
to life, to arrest a person presenting such a danger and resisting
their authority, or to prevent his or her escape, and only when less
extreme means are insufficient to achieve these objectives. In any
event, intentional lethal use of firearms may only be made when
strictly unavoidable in order to protect life.”
Paragraph 10
“In the circumstances provided for under principle
9, law enforcement officials shall identify themselves as such and
give a clear warning of their intent to use firearms, with sufficient
time for the warning to be observed, unless to do so would unduly
place the law enforcement officials at risk or would create a risk of
death or serious harm to other persons, or would be clearly
inappropriate or pointless in the circumstances of the incident.”
Paragraph 11
“Rules and regulations on the use of firearms by
law enforcement officials should include guidelines that:
(a) Specify the circumstances under which law
enforcement officials are authorized to carry firearms and prescribe
the types of firearms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate
circumstances and in a manner likely to decrease the risk of
unnecessary harm;
(c) Prohibit the use of those firearms and ammunition
that cause unwarranted injury or present an unwarranted risk;
(d) Regulate the control, storage and issuing of
firearms, including procedures for ensuring that law enforcement
officials are accountable for the firearms and ammunition issued to
them;
(e) Provide for warnings to be given, if appropriate,
when firearms are to be discharged;
(f) Provide for a system of reporting whenever law
enforcement officials use firearms in the performance of their duty.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicants complained that the killing of Stelios Kalli Panayi
amounted to a violation of Article 2 of the Convention, which reads
as follows:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
Government contested that argument.
A. Admissibility
1. Preliminary remark
-
The Court first observes that the Government did not dispute Turkey's
liability under the Convention for the violations alleged in the
application. It remains nevertheless to be ascertained whether Turkey
had “jurisdiction” over the facts complained of within
the meaning of Article 1 of the Convention.
- In
this connection, the Court points out that in the case
of Cyprus v. Turkey
([GC], no. 25781/94, ECHR 2001 IV) it
found that since it had effective overall control over northern
Cyprus, Turkey's responsibility could not be confined to the acts of
its own soldiers or officials in northern Cyprus but had also to be
engaged by virtue of the acts of the local administration which
survived by virtue of Turkish military and other support. It follows
that, in terms of Article 1 of the Convention, Turkey's jurisdiction
must be considered to extend to securing the entire range of
substantive rights set out in the Convention and those additional
Protocols which it has ratified, and that violations of those rights
are imputable to Turkey (see Cyprus v.
Turkey, cited above, § 77).
- According
to the Government's own version of the facts, Stelios Kalli Panayi
died as a result of the use of lethal force by Turkish or
Turkish-Cypriot soldiers. Moreover, when he was hit by the bullets,
he was entering the territory of the “TRNC”. Under these
circumstances Stelios Kalli Panayi must be regarded as “within
[the] jurisdiction” of Turkey within the meaning of Article 1
(see, mutatis mutandis, Solomou and Others v. Turkey,
no. 36832/97, §§ 48-52, 24 June 2008). The responsibility
of the respondent State under the Convention is accordingly engaged.
2. The Government's objection of non-exhaustion of
domestic remedies
(a) Arguments of the parties
(i) The Government
- The
Government submitted that the applicants had failed to have recourse
to the remedies existing in the “TRNC”, which were
available to them and capable of providing redress for their
complaints. As was clear from the “TRNC” Constitution, an
independent and effective judicial system existed in Northern Cyprus
and the Turkish-Cypriot courts were the guardians of individuals'
rights. The Convention formed part of the laws of the “TRNC”.
Administrative action was subject to judicial review on the grounds
of illegality or errors of law and excess and/or abuse of power. In
particular, Article 152 of the “TRNC” Constitution
provided that the High Administrative Court had exclusive
jurisdiction to adjudicate in the final instance on a complaint that
a decision, act or omission of any body, authority or person
exercising executive or administrative authority was contrary to one
of the provisions of the Constitution or of any laws or subsidiary
legislation thereunder, or exceeded or abused the powers vested in
such body or authority or person. The Government relied on the
principles laid down by the Court in the case of Cyprus v. Turkey
(cited above) and considered that in the present case there had
been no justification for not submitting any petition or complaint to
the local authorities.
(ii) The applicants
- The
applicants argued that there were no effective remedies available to
them in the northern part of Cyprus, which was under the effective
control of the Turkish Government and from where the acts complained
of emanated. Moreover, even assuming that such remedies existed in
theory, they would not have been effective in practice in the
applicants' case because of their ethnic origin and religious
beliefs. They were not aware of even one case of unlawful killing by
the Turkish armed forces where a decision had been given in favour of
a victim of Greek-Cypriot origin by the courts of the “TRNC”.
In addition to that, at the relevant time the applicants would not
have been allowed to cross the ceasefire line and commence legal
proceedings or attend court hearings in the “TRNC”.
- Moreover,
as there had been no independent criminal investigation into the
circumstances of the killing, it was doubtful whether any civil court
in the “TRNC” could have investigated the matter in a way
that would have led to meaningful results for the applicants.
Finally, the Government had failed to prove the existence of
effective and accessible remedies.
(iii) The third-party intervener
- The
Government of Cyprus noted that Turkey had failed to indicate the
precise remedies which were, in theory and practice, available to the
applicants. In any event, given the existing legal and political
context, it would have been unrealistic to expect the parents of
Stelios Kalli Panayi “to seek justice at the hands of a State
which ha[d] killed their son, which ha[d] put forward a wholly false
account of the circumstances and which ha[d] not conducted any form
of investigation into the death”. The “TRNC” was
not a valid and legal State and its courts were not “established
by law” within the meaning of Article 6 of the Convention, as
they had not been established by Turkey through legal acts of its
democratic institutions, but rather as a result of invasion and
continuing military control. Turkey did not exercise control over the
“TRNC” by rule of law, but simply by means of military
occupation; as a consequence, the remedies available in the “TRNC”
could not be considered remedies of the respondent High Contracting
Party.
(b) The Court's assessment
- In
its judgment in the case of Cyprus v. Turkey (cited above,
§§ 14, 16, 90 and 102) the Court held that for the
purposes of Article 35 § 1 of the Convention, remedies available
in the “TRNC” could be regarded as “domestic
remedies” of the respondent State and that the question of
their effectiveness was to be considered in the specific
circumstances where it arose. However, this conclusion was not to be
seen as in any way putting in doubt the view of the international
community regarding the establishment of the “TRNC” or
the fact that the Government of the Republic of Cyprus remained the
sole legitimate government of Cyprus. The Court does not see any
reason to depart from its previous finding on this point, which was
based on its well-established case-law.
- The
Court further notes that the Government failed to indicate precisely
the remedies which were available to the applicant, confining
themselves to mentioning the existence of judicial and administrative
remedies. In principle, legal systems provide two avenues of recourse
for the victims of illegal and criminal acts attributable to the
State or its agents, namely civil and criminal remedies (see Andreou
v. Turkey (dec.), no. 45653/99, 3 June 2008).
- As
regards criminal-law remedies, the Court observes that the Government
have not provided any information concerning an investigation into
the circumstances of the shooting on 3 June 1996 carried out by an
authority of the “TRNC” which was independent from the
military forces and competent to assess the criminal liability of the
individuals involved in the incident. No documents from any such
inquiry have been produced before the Court. Moreover, even assuming
that an independent body had started an investigation, in the context
of which the applicants could have claimed their rights as victims,
it would have been pending since June 1996 without achieving any
substantial results.
- The
Court considers that these circumstances cast doubt on the
effectiveness of any such inquiry and that the applicants are not
obliged to await its conclusion before having the merits of their
case examined by the Convention institutions. The preliminary
objection in this regard is therefore dismissed.
- As
regards a civil action to obtain redress for damage sustained through
the alleged illegal acts or unlawful conduct of State agents, it has
not been shown that, without the benefit of the conclusions of an
effective criminal inquiry, the civil or administrative courts in the
“TRNC” would have been able to pursue any independent
investigation and would have been capable of making any meaningful
findings regarding the identity of the perpetrators of the shooting,
still less of establishing their responsibility (see Khashiyev and
Akayeva v. Russia, nos. 57942/00 and 57945/00,
§§ 119-121, 24 February 2005; Estamirov and Others
v. Russia, no. 60272/00, § 77, 12 October
2006; and Musayev and Others v. Russia, nos.
57941/00, 58699/00 and 60403/00, § 135, 26 July 2007). In
the light of the above, the Court considers that the applicants were
not obliged to pursue civil remedies (see, mutatis mutandis,
Andreou, decision cited above).
- It
follows that the Government's objection should be dismissed.
3. Other grounds for inadmissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
(b) The Government
- The
Government argued that the circumstances of the present case did not
disclose any breach of Article 2 of the Convention. They relied on
their version of the facts and on the principles laid down by the
Court in the cases of Andronicou and Constantinou v. Cyprus (9
October 1997, Reports of Judgments and Decisions 1997-VI);
Bubbins v. the United Kingdom (no. 50196/99, ECHR
2005-II); and Olah v. Hungary ((dec.), no. 56558/00, 14
September 2004).
- Contrary
to the allegations of the applicants, their son had been armed and,
in spite of oral warnings and warning shots, had entered into “TRNC”
territory across the bridge which was used by the UN peacekeeping
forces only. The border areas had been a source of problems in Cyprus
and at the time of the incident there had been considerable tension,
with provocative acts (such as abusive language and gestures,
throwing of stones, pointing with guns, opening fire into the air,
starting fires and reinforcing fortifications) being carried out by
Greek-Cypriot soldiers. On 3 November 1995 a National Guard
soldier had breached the Turkish-Cypriot defence lines; he had been
apprehended and returned to southern Cyprus. In the present case, the
Turkish soldiers had had to use force in self-defence in order to
stop Stelios Kalli Panayi, whose intentions were unknown and who was
ignoring the warnings, acting suspiciously and posing a threat to
them. According to “TRNC” law (section 53 of Law
No. 35/1986), military personnel were allowed to use weapons as
a last resort after having given a warning, inter alia, in
order to repel an act of aggression, to secure the submission of
persons who disobeyed orders to abandon their weapons and in cases of
self-defence. In the present case, the use of lethal force had been
“absolutely necessary” within the meaning of Article 2 of
the Convention.
- The
Government submitted that the allegation in the UN
Secretary General's report (see paragraph 11 above) that the
Turkish-Cypriot soldier had also breached the UN buffer zone was
somewhat speculative. In fact, the UN observation post could not have
had a clear view of the area in question.
- According
to the Government, it was not true that the UN soldier had been fired
at in order to prevent medical aid from being provided to the
applicants' son. The UN soldier had been informed that due to the
possibility of interference with evidence and the potential threat
posed by Stelios Kalli Panayi, he could have approached the latter if
he had come with his commanding officer. The UN soldier had not
complied with this warning and had tried to enter “TRNC”
territory alone. He had again been warned by means of a shot fired
into the air. There had been no firing at UN personnel.
- When,
at 6.50 a.m., the UN commander responsible for the area had arrived,
he and the UN soldier had been allowed access to Stelios Kalli
Panayi; at 7.05 a.m. the latter had been taken to hospital for
treatment by ambulance (which had arrived without undue delay at
7.01 a.m.). It followed that the opening of fire had not
prevented medical aid from being administered; on the contrary, it
had been aimed at protecting the UN soldier against the threat that
Stelios Kalli Panayi might have posed. In addition, had he approached
the applicants' son, the UN soldier might not have been able to
inform his superiors immediately about the need for an ambulance and
might have lost time.
- As
to the procedural protection of the right to life, the Government
observed that an independent and effective judicial system existed in
the “TRNC” and that the incident had been investigated by
the commander of the security forces; detailed reports had been
produced giving a minute-by-minute account of events (see paragraph
21 (d), (e) and (f) above). A request had been made to UNFICYP to
allow a Turkish-Cypriot pathologist to visit the scene and report on
his findings (see paragraph 21 (a) and (b) above). The authorities
had also issued a public protest against the breach of the ceasefire
line by Stelios Kalli Panayi (see paragraph 21 (c) above) and no
attempt had been made to keep the incident a secret; on the contrary,
it had been reported by the national media (see paragraph 20
(c) above) and freely discussed in the public domain. Stelios
Kalli Panayi had been immediately transferred to the Greek-Cypriot
side, thus depriving the “TRNC” authorities of any
possibility of performing an autopsy. As they had been denied the
opportunity of carrying out an examination of the incident, it would
be unfair to find them responsible for failing to provide redress.
(b) The applicants
- The
applicants alleged that the killing of their son had been the result
of deliberate acts by members of the Turkish armed forces. The
circumstances of the case strongly suggested that the persons who
shot Stelios Kalli Panayi had intended to kill him. Moreover, even
assuming that this had not been the case, the use of force had not
been “absolutely necessary” within the meaning of Article
2 of the Convention. In this connection the applicants emphasised the
following:
(a) there
had been no attacks on the Turkish armed forces in the period before
the incident of 3 June 1996 and the ceasefire line was constantly
patrolled by members of UNFICYP;
(b) although
wearing the uniform of the National Guard, Stelios Kalli Panayi had
approached the position of the Turkish armed forces unarmed, shouting
the Turkish word for “friend” and behaving in a manner
which no reasonable person could have regarded as posing a threat of
violence to anyone;
(c) in
any case, the immediate recourse to lethal force had been a wholly
inappropriate response which went far beyond what could be regarded
as “absolutely necessary”;
(d) no
steps had been taken to ensure that the troops on guard duty did not
jump too readily to the conclusion that there was a threat and did
not have automatic recourse to lethal force;
(e) the
decision to prevent medical assistance being given to Stelios Kalli
Panayi was taken when any possible threat of violence against the
Turkish armed forces had manifestly come to an end.
- According
to the applicants, the shooting of an unarmed man could not, in any
circumstances, be described as “proportionate” to a
purported legitimate aim. The UN Force and Firearms Principles (see
paragraph 22 above) could not, therefore, be invoked in favour of the
Government. Moreover, the purpose of the opening of fire on UNFICYP
personnel had been to prevent emergency medical aid from being
administered to the victim, a fact which had directly contributed to
the fatal outcome of the incident. Stelios Kalli Panayi had been shot
at 6.30 a.m. and the ambulance had not arrived until 7.01 a.m.
- The
applicants challenged the Government's assertions that their son had
been armed and that warning shots had been fired. On these points,
the Government's version of the facts was contradicted by the UN
Secretary General's report (paragraph 11 above). The reports
produced by the Government were somewhat ambiguous on this point, as
it was said that Stelios Kalli Panayi had been fully equipped but
that his rifle was not visible (see paragraph 21 (e) above). The UN
Secretary-General had also declared: “I was dismayed at the
attempts by the Turkish-Cypriot Security Forces to prevent UNFICYP by
threats of force from fulfilling its duties in the buffer zone.”
- The
applicants further observed that no independent investigation had
been carried on into the circumstances of their son's death. The
so-called “investigation report” attached to the
Government's observations clearly indicated that the “inquiry”
had been carried out by members of the Turkish armed forces into the
actions of other members of the same armed forces.
- Finally,
the cases cited by the Government (see paragraph 39 above) had a
different factual background.
(c) The third-party intervener
- The
Government of Cyprus observed that Turkey's version of the facts was
contradicted by the UN Secretary-General's report, based on the
direct witnessing of Stelios Kalli Panayi's murder by UNFICYP
officers, who had been able to see the incident clearly. They
endorsed the applicants' version of the facts in substance and argued
that Turkey had made false submissions in order to avoid
responsibility for a distressing murder committed in cold blood.
Seeking to prevent someone from entering an area could not be
regarded as a purpose recognised by Article 2 § 2 of the
Convention. In any event, the use of force had not been proportionate
to the purported aim: the victim had not posed a direct armed threat
to the Turkish soldiers and the area was constantly patrolled by
UNFICYP. The ambulance and the UN personnel who came to help Stelios
Kalli Panayi did not find any weapon on him and Turkey had failed to
produce the rifle which he had allegedly been holding. Moreover,
there had been no legitimate purpose in preventing UNFICYP from
entering the area. The UN personnel had not posed any threat to the
Turkish troops and the explanations given by Turkey on this point
were wholly false and unconvincing.
- Finally,
no independent investigation had been carried out into the
circumstances surrounding the use of lethal force, as only a cursory
military investigation had been carried out by the commanding officer
of the soldiers who had shot the victim. The statements of those
soldiers had not been made available and the actions taken by the
“TRNC” criminal investigation authorities in order to
ascertain that the shooting had been a case of homicide in
self-defence had not been specified. The media coverage of the
killing could not absolve the State from its duty to conduct its own
rigorous investigations.
2. The Court's assessment
(a) The alleged killing of Stelios Kalli
Panayi
(i) General principles
- The
Court reiterates that Article 2, which safeguards the right to life
and sets out those circumstances in which deprivation of life may be
justified, ranks as one of the most fundamental provisions in the
Convention, to which no derogation is permitted. Together with
Article 3, it also enshrines one of the basic values of the
democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must
therefore be strictly construed. The object and purpose of the
Convention as an instrument for the protection of individual human
beings also requires that Article 2 be interpreted and applied
so as to make its safeguards practical and effective (see McCann
and Others v. the United Kingdom, 27 September
1995, §§ 146-147, Series A no. 324).
- The
exceptions delineated in paragraph 2 indicate that this provision
extends to, but is not concerned exclusively with, intentional
killing. The text of Article 2, read as a whole, demonstrates that
paragraph 2 does not primarily define instances where it is permitted
intentionally to kill an individual, but describes the situations
where it is permitted to “use force” which may result, as
an unintended outcome, in the deprivation of life. The use of force,
however, must be no more than “absolutely necessary” for
the achievement of one of the purposes set out in sub-paragraphs (a),
(b) or (c) (ibidem, § 148).
- In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivations of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances (see, among other
authorities, Avşar v. Turkey, no. 25657/94, §
391, ECHR 2001-VII, and Musayev and Others, cited above, §
142). It should be kept in mind, however, that the use of force by
agents of the State in pursuit of one of the aims delineated in
paragraph 2 of Article 2 of the Convention may be justified
under this provision where it is based on an honest belief which is
perceived, for good reasons, to be valid at the time but subsequently
turns out to be mistaken. To hold otherwise would be to impose an
unrealistic burden on the State and its law-enforcement personnel in
the execution of their duty, perhaps to the detriment of their lives
and the lives of others (see Andronicou and Constantinou,
cited above, § 192).
- In assessing evidence, the Court has adopted the
standard of proof “beyond reasonable doubt”. According to
its established case-law, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Moreover, the level of persuasion
necessary for reaching a particular conclusion and, in this
connection, the distribution of the burden of proof are intrinsically
linked to the specificity of the facts, the nature of the allegation
made and the Convention right at stake. In this context, the conduct
of the parties when evidence is being obtained has to be taken into
account. The Court is also attentive to the seriousness that attaches
to a ruling that a Contracting State has violated fundamental rights
(see, among others, the following judgments: Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A
no. 25; Ribitsch v. Austria, 4 December 1995, § 32,
Series A no. 336; Akdivar and Others v. Turkey,
16 September 1996, § 68, Reports 1996-IV; Tanlı
v. Turkey, no. 26129/95, § 111, ECHR 2001-III; and
Ilaşcu and Others v. Moldova and Russia [GC],
no. 48787/99, § 26, ECHR 2004 VII).
- The
Court has also noted the difficulties for applicants to obtain the
necessary evidence in support of allegations in cases where the
respondent Government are in possession of the relevant documentation
and fail to submit it. Where the applicant makes out a prima facie
case and the Court is prevented from reaching factual conclusions
owing to the lack of such documents, it is for the Government to
argue conclusively why the documents in question cannot serve to
corroborate the allegations made by the applicants, or to provide a
satisfactory and convincing explanation of how the events in question
occurred. The burden of proof is thus shifted to the Government and
if they fail in their arguments, issues will arise under Article 2
and/or Article 3 (see Toğcu v. Turkey, no. 27601/95,
§ 95, 31 May 2005; Akkum and Others v. Turkey, no.
21894/93, § 211, ECHR 2005 II; and Musayev and
Others, cited above, § 144).
- Lastly,
the Court is sensitive to the subsidiary nature of its role and
recognises that it must be cautious in taking on the role of a
first-instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case (see, for
example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4
April 2000). Nonetheless, where allegations are made under Articles 2
and 3 of the Convention the Court must apply a particularly thorough
scrutiny even if certain domestic proceedings and investigations have
already taken place (see Ribitsch, cited above, § 32;
Avşar, cited above, § 283; Solomou and Others,
cited above, § 68; and Isaak and Others v. Turkey,
no. 44587/98, § 109, 24 June 2008).
(ii) Application of the above principles
to the present case
- In
the present case, it is not contested that Stelios Kalli Panayi
voluntarily crossed the UN buffer zone. The respondent
Government accepted that, as indicated in the UN Secretary-General's
report (see paragraph 11 above), the bullet which hit Mr Panayi and
caused his death was fired by a Turkish or Turkish-Cypriot soldier on
duty at the Yıldırım sentry post and that the shooting
was intentional. These elements are sufficient to reach the
conclusion that Stelios Kalli Panayi was killed by an agent of the
respondent Government (see, mutatis mutandis, Solomou and
Others, cited above, §§ 70-74). It remains to be
ascertained whether the use of force was justified under any of the
sub-paragraphs of Article 2 § 2.
- The
Court will first examine whether the shooting of Mr Panayi was
justified “in defence of any person from unlawful violence”.
In this respect, it is to be noted that the parties disagreed as to
whether the victim was carrying a weapon. The Government alleged that
he was, while the applicants and the third-party intervener denied
this.
- The
Court is unable to accept the respondent Government's version of the
facts on this point. It observes that it is contradicted by the UN
Secretary-General's report, which unequivocally referred to “an
unarmed National Guard soldier” (see paragraph 11 above). The
Court has no reason to doubt the independence and trustworthiness of
the UN authorities and of their sources (see, mutatis mutandis,
Solomou and Others, cited above, §§ 71 in
fine). Moreover, one of the documents produced by the Government
themselves (see paragraph 21 (e) above) indicated that Mr Panayi's
weapon “was not visible”. Under these circumstances, the
Court concludes that at the moment of the shooting, the Turkish or
Turkish-Cypriot soldiers on duty at the Yıldırım
sentry post did not see any weapon being carried by the victim.
However, as the latter was wearing the uniform of the National Guard
– a fact which is not denied by the applicants (see paragraph
45 (b) above) – they could have had reasons to suspect that he
might be armed. However, this fact cannot, in the circumstances of
the present case, justify the use of lethal force.
- The
deceased was advancing alone, had shouted the words “Come
brother” and was trying to cross a wooden bridge normally used
by UN patrols. At that moment, he was outnumbered by the “TRNC”
security forces and there was little likelihood that an isolated man
openly crossing a controlled access route to the “TRNC”
would attack the sentry post. In any event, the “TRNC”
soldiers seemed to be in complete control of the area and it would
have been possible for them to stop Mr Panayi without jeopardising
his life (see, mutatis mutandis, Anık and Others
v. Turkey, no. 3758/00, § 65, 5 June 2007).
In particular, as he was not holding a weapon in his hands at the
moment of the shooting (see paragraph 60 above), it would have been
possible to observe his behaviour from a distance, avoiding recourse
to lethal force until such time as clear indicators had shown that he
had aggressive intentions.
- The
Court also attaches particular weight to the fact that, according to
the UN Secretary-General's report (see paragraph 11 above), “a
single shot was heard”. This statement is inconsistent with the
Government's assertion that two warning shots were fired by a Turkish
or Turkish-Cypriot soldier (one into the air and one towards the
ground) (see paragraph 17 above). In this connection, the Court is
struck by the fact that it appears from the documents submitted by
the Government (see paragraph 21 above) that, in spite of their
inconsistency with the statements emanating from official UN sources,
the domestic authorities do not seem to have challenged the soldiers'
statements that the opening of fire had been preceded by warning
shots. It is the opinion of the Court that opening of fire should,
whenever possible, be preceded by warning shots (see Paragraph 10 of
the UN Force and Firearms Principles, quoted in paragraph 22 above).
The circumstances of the present case do not show that it was
impossible to give such warning and also for that reason the conduct
of the “TRNC” soldiers was hard to reconcile with the
requirement of absolute necessity enshrined in Article 2 of the
Convention.
- Stelios
Kalli Panayi breached the ceasefire lines and entered the buffer
zone. To this limited extent, he bears responsibility for the
tragic course taken by events (see, mutatis
mutandis, Isaak
and Others v. Turkey (dec.),
no. 44587/98, 28 September 2006, and
Solomou and Others,
cited above, § 48). However, his
behaviour does not, as such, appear to have posed a threat to the
soldiers on duty at the Yıldırım sentry post
such as to render absolutely necessary the use
of lethal force.
- Nor
can it be argued that, at the material time, Stelios Kalli Panayi was
“lawfully detained” or that the use of force was
“absolutely necessary” to “effect a lawful arrest”.
Indeed, even assuming that the fact that he had crossed the ceasefire
line could justify depriving him of his liberty, it is clear that he
could hardly have escaped from the control of the security forces
(see, mutatis mutandis, Solomou and Others, cited
above, § 75). As to the question whether the shooting was
justified by the aim of quelling a “riot or insurrection”,
the Court cannot but recall its findings that Stelios Kalli Panayi
was an isolated individual, whose actions had not been followed by
others.
- In
addition to that, the Court observes that the UN Secretary-General
reported that UNFICYP soldiers had been prevented from reaching
Stelios Kalli Panayi “by Turkish-Cypriot soldiers who [had]
fired shots in the direction of the UNFICYP soldiers each time the
latter [had] tried to move forward”. This further incident,
which was described as a “hostile action, including live fire
against UNFICYP” (see paragraph 11 above), had the effect of
preventing immediate medical care from being administered to the
victim of the shooting.
- Even
though the Court does not have at its disposal any element capable of
showing that such immediate help could have contributed to saving
Mr Panayi's life, it cannot but regret that the Turkish or
Turkish-Cypriot forces hampered the humanitarian intervention of the
UNFICYP soldiers, thus acting in a manner which is incompatible with
the obligation to protect life imposed by Article 2 § 1 of the
Convention and with Paragraph 5 (c) of the UN Force and Firearms
Principles (according to which law enforcement officials must “ensure
that assistance and medical aid are rendered to any injured or
affected persons at the earliest possible moment” – see
paragraph 22 above). In this connection, the Court has examined
the Government's allegation that the firing of warning shots in the
direction of the UN personnel was aimed at preventing interference
with evidence and at protecting the UN soldier against the threat
that Stelios Kalli Panayi might have posed (see paragraphs 42 and 43
above). However, it considers that the UN personnel were ideally
placed and sufficiently trained to evaluate the dangerousness of the
situation and to act in a manner that would have preserved the
evidence. Moreover, a seriously injured man lying on the ground in Mr
Panayi's circumstances would hardly have been capable of posing any
threat whatsoever to armed UN soldiers.
(iii) Conclusion
- In
the light of the above, the Court is of the opinion that Stelios
Kalli Panayi was killed by agents of the respondent State and that
the use of force was not justified by any of the exceptions laid down
in paragraph 2 of Article 2 of the Convention. It follows that there
has been a violation of the substantive limb of this provision.
(b) The alleged inadequacy of the
investigation
(i) General principles
- The
obligation to protect the right to life under Article 2 of the
Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within
[its] jurisdiction the rights and freedoms defined in [the]
Convention”, also requires by implication that there should be
some form of effective official investigation when individuals have
been killed as a result of the use of force (see, mutatis
mutandis, McCann and Others, cited above, § 161, and
Kaya v. Turkey, 19 February 1998, § 105, Reports
1998-I). The essential purpose of such investigation is to secure
the effective implementation of the domestic laws which protect the
right to life and, in those cases involving State agents or bodies,
to ensure their accountability for deaths occurring under their
responsibility. What form of investigation will achieve those
purposes may vary in different circumstances. However, whatever mode
is employed, the authorities must act of their own motion once the
matter has come to their attention. They cannot leave it to the
initiative of the next of kin either to lodge a formal complaint or
to take responsibility for the conduct of any investigatory
procedures (see, for example, mutatis mutandis, İlhan
v. Turkey [GC] no. 22277/93, § 63,
ECHR 2000-VII). The Court recalls that the obligations of the
State under Article 2 cannot be satisfied merely by awarding damages.
The investigations required under Article 2 of the Convention must be
capable of leading to the identification and punishment of those
responsible (see Bazorkina v. Russia, no. 69481/01,
§ 117, 27 July 2006).
- For
an investigation into alleged unlawful killing by State agents to be
effective, it may generally be regarded as necessary for the persons
responsible for and carrying out the investigation to be independent
from those implicated in the events (see, for example, Güleç
v. Turkey, 27 July 1998, §§ 81-82, Reports
1998-IV, and Oğur v. Turkey [GC], no. 21594/93,
§§ 91-92, ECHR 1999-III). The investigation must also
be effective in the sense that it is capable of leading to a
determination of whether the force used in such cases was or was not
justified in the circumstances (see, for example, Kaya, cited
above, § 87). This is not an obligation of result, but of
means. The authorities must have taken the reasonable steps available
to them to secure the evidence concerning the incident, including,
inter alia, eyewitness testimony, forensic evidence and, where
appropriate, an autopsy which provides a complete and accurate record
of injury and an objective analysis of clinical findings, including
the cause of death (with regard to autopsies, see, for example,
Salman v. Turkey [GC], no. 21986/93, §106, ECHR 2000-VII;
concerning witnesses, see, for example, Tanrıkulu
v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV;
as regards forensic evidence, see, for example, Gül
v. Turkey, no. 22676/93, § 89, 14 December
2000). Any deficiency in the investigation which undermines its
ability to establish the cause of death or the person responsible
will risk falling below this standard.
- In
this context, there must also be an implicit requirement of
promptness and reasonable expedition (see Tanrıkulu,
cited above, § 109, and Mahmut Kaya v. Turkey,
no. 22535/93, §§ 106-107, ECHR 2000-III). It must
be accepted that there may be obstacles or difficulties which prevent
progress in an investigation in a particular situation. However, a
prompt response by the authorities in investigating the use of lethal
force may generally be regarded as essential in maintaining public
confidence in maintenance of the rule of law and in preventing any
appearance of collusion in or tolerance of unlawful acts (see
Bazorkina, cited above, § 119, and Solomou and
Others, cited above, § 82).
(ii) Application of the above principles
to the present case
-
In the present case, the Government confined themselves to producing
a few notes emanating from the military authorities and describing
the basic events surrounding the shooting of Stelios Kalli Panayi on
the basis of the versions given by the soldiers involved in it (see
paragraph 21 above). It does not appear that these versions have been
challenged in the light of the material evidence available to the
“TRNC” authorities or of the statements of the UN
personnel.
- In
any case, an investigation carried out by the same body to which
those implicated in the events belong can hardly be described as
“independent” and does not satisfy the requirements of
Article 2. It is also worth noting that it does not seem that the
question of the criminal liability of the “TRNC” soldier
who killed Mr Panayi was even examined by the domestic
authorities. The Government did not claim that the persons
responsible for the killing and for the opening of fire against the
UN personnel had been arraigned before a domestic tribunal.
- In
the light of the foregoing, the Court finds that the authorities
failed to carry out an effective criminal investigation into the
circumstances surrounding the death of Stelios Kalli Panayi. The
Court accordingly holds that there has been a violation of Article 2
in this respect also.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE
CONVENTION
- The
applicants submitted that, contrary to Article 8 of the Convention,
they had been deprived of a member of their family. Relying on
Article 14, taken in conjunction with Articles 2 and 8 of the
Convention, they further alleged that Stelios Kalli Panayi had been
killed because of his Greek-Cypriot national origin and the fact that
he was a Christian.
Articles
8 and 14 of the Convention insofar as relevant read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
- The
Government contested that claim. They argued that the killing of
Stelios Kalli Panayi had been unconnected to his origin and/or
religion. The facts of the case consisted of a trespass incident by a
foreign soldier trying to cross the border not only without
permission but also in defiance of strong warnings.
- The
Government of Cyprus agreed with the applicants. They observed that
was hard to think of a more serious interference with the right to
respect for private life than the taking of the life of a son.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- Having
regard to the finding relating to Article 2 (see paragraphs 66
and 73 above), the Court considers that it is not necessary to
examine whether, in this case, there has been a violation of Articles
8 and 14 of the Convention (see Solomou and Others, cited
above, § 93).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants noted that in Cyprus, as in other Mediterranean Member
States of the European Union, children were supposed to take
responsibility for their parents' care and social welfare in old age.
As they had raised their son at a considerable cost until the age of
19, the applicants were entitled to expect that, in accordance with
local tradition and in the absence of a developed welfare State,
Stelios Kalli Panayi would have looked after them in their old age.
The loss of financial support due to their son's killing could be
calculated at 2,400 euros (EUR) per year for each of them. This sum
should be multiplied by 15, the number of years between the age of 63
(at which people retired and/or began to have problems and support
needs associated with old age) and the age of 78 (average life
expectancy in Cyprus). The applicants therefore claimed EUR 36,000
each for pecuniary damage.
- The
applicants also claimed EUR 75,000 each for non-pecuniary damage.
They stressed the pain, suffering and anguish that they had had to
endure due to the loss of their son. They further stressed that they
had been refugees since the 1974 Turkish military intervention.
- The
Government pointed out that the applicants had failed to produce any
document, such as their son's payslips, supporting their claim for
pecuniary damage. Furthermore, it was not certain that the applicants
would have been dependent on their son's earnings.
- As
to non-pecuniary damage, the Government considered that the amounts
claimed by the applicants were highly exaggerated and incompatible
with previous awards made by the Court in similar cases. The finding
of a violation would constitute, in the circumstances of the present
application, sufficient just satisfaction.
- The
Court reiterates that there must be a clear causal connection between
the damage claimed by the applicants and the violation of the
Convention, and that this may, in appropriate cases, include
compensation in respect of loss of earnings (see, among other
authorities, Çakıcı v. Turkey [GC],
no. 23657/94, § 127, ECHR 1999 IV). However, in the
present case it is not established that the applicants were in any
way dependent on Stelios Kalli Panayi's future earnings (see, mutatis
mutandis, Solomou and Others, cited above, § 100).
Therefore, the Court does not find it appropriate in the
circumstances of this case to make any award to the applicants under
this head (see Musayev and Others, cited above, § 189).
- As
to non-pecuniary damage, the Court observes that it has found a
violation of Article 2 of the Convention on account of the killing of
the applicants' son and the lack of an effective investigation and
considers that an award should be made under that head, bearing in
mind the family ties between the applicants and the victim of the
killing and the seriousness of the damage sustained, which cannot be
compensated for solely by a finding of a violation (see, mutatis
mutandis, Musayev and Others, cited above, § 193).
Acting on an equitable basis, the Court awards EUR 35,000 to
each of the applicants (see, mutatis mutandis, Solomou and
Others, cited above, § 101, and Isaak and Others,
cited above, § 139), plus any tax that may be chargeable on
these amounts.
B. Costs and expenses
- Relying
on bills from their representatives, the applicants sought EUR
9,888.30 for the costs and expenses incurred in the proceedings
before the Court.
- The
Government considered that the amount claimed was highly subjective
and exaggerated. They pointed out that the applicants'
representatives had failed to produce “receipts or documents”
and had confined themselves to indicating rough figures which could
not form the basis for any compensation claims.
- According
to the Court's established case-law, an award can be made in respect
of costs and expenses incurred by the applicants only in so far as
they have been actually and necessarily incurred and are reasonable
as to quantum (see Belziuk v. Poland, 25 March 1998, §
49, Reports 1998-II). The Court notes that the case was
rather complex, involved perusing a certain amount of factual and
documentary evidence and required a fair degree of research and
preparation (see, mutatis mutandis, Solomou and Others,
cited above, § 104). Moreover, the applicants' representatives
have produced a detailed bill of costs indicating the out of pocket
expenses and the sums due for attending the meetings with their
clients, preparing the full text of the application and of the
various submissions. In the light of the above, the Court considers
the amount requested in respect of costs and expenses for the
proceedings before it (EUR 9,888.30) to be reasonable and
sufficiently itemised and decides to award it to the applicants.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of
Article 2 of the Convention in respect of the killing of Stelios
Kalli Panayi;
- Holds that there has been a violation of
Article 2 of the Convention in respect of the failure to conduct
an effective investigation into the circumstances in which Stelios
Kalli Panayi died;
- Holds that it is not necessary to examine
whether there has been a violation of Articles 8 and 14 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i)
EUR 35,000 (thirty-five thousand euros), plus any tax that may be
chargeable, to each applicant in respect of non-pecuniary damage;
(ii)
EUR 9,888.30 (nine thousand eight hundred and eighty-eight euros
thirty cents), plus any tax that may be chargeable to the applicants,
in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 27 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
